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The employee and the employer signed confidentiality agreement to the "standard" lawyer: payment of compensation is the key

2018-10-25 15:34 beijing evening news TF017

Employees and employers to sign a confidentiality agreement, non competition, almost become the Internet and other high-tech companies in the industry "standard". However, you need to sign confidentiality agreement or the work is not limited in the high-tech industry, whether you are a chef, real estate intermediary, training a teacher or a beautician, are likely to sign a confidentiality agreement or competition on the employer's request.

Feng Chenqing data figure drawing

Catering Chef

Copy menu was sentenced to compensation for breach of contract

"I cook in a famous restaurant, our restaurant menus some of our exclusive boss handed down. Now I want to quit this job to the restaurant, asked to sign a non competition agreement with me, I will give some restrictions on compensation, I would like to ask the non competition compensation time is long, the law has specific provisions?" This is a chef in the online consulting posts.

According to the reporter understands, chefs and restaurants and competition to sign confidentiality agreement, has become a common phenomenon in catering industry. Especially the part has the exclusive formula of the restaurant, in order to prevent the leakage of the secret, and often hire chefs to sign the agreement. The cook after the departure of breach of agreement lawsuit, is also common.

Master Feng was originally a Shunyi chef Beijing Teppanyaki restaurant. In April 2016, master Feng from the restaurant to leave, before leaving for a month in March 20th, and the restaurant he had signed a confidentiality and non competition agreement. The content writes, where the district and the operation of Party A Party B shall not engage in the same business, similar products of other enterprises competing part-time in a restaurant, shall not be included in the form of shares in enterprises competition of dormant shareholders to shareholders, and shall not disclose this agreement first contains business information to the enterprise competition. If Party B violates this agreement, Party A shall have the right to terminate the labor relationship with Party B, and Party B in accordance with Party A for not less than in the last year of the total annual income (including salary, bonuses, dividends, etc.) the standard pay liquidated damages to the party.

However, in early March 17th, master Feng and others set up a Teppanyaki restaurant, and a registered company, accounting for 33% of the shares. This shop opened in the old club restaurant located in Shunyi District.

The old club is not convinced, apply for labor arbitration. The results of master Feng to his old club to pay more than 11 yuan, master Feng refused to accept the choice on the court.

Master Feng said, he signed a confidentiality and non competition agreement, the original owner knew he set up his own company, and the contract is not agreed compensation, so the contract should be invalid. But the original owner denied the claim of master Feng said, did not know.

The original club presented a users on the Internet to master Feng new comments, user comments:"...... From the menu to copy it, then how similar......"

The court held that workers in violation of the agreement, shall pay liquidated damages to the employer in accordance with the contract. Master Feng belongs to the manager and executive chef, access to the company's trade secrets, with restrictions on personnel. Although the company set up in the former master Feng, signed a confidentiality and non competition agreement in the post, after the signing of the agreement but it is still in the old club office, according to the agreement, shall be paid to the old club master Feng penalty.

Ultimately, the court upheld the decision of the arbitration award, master Feng to pay liquidated damages 11 yuan to the old club.

Teacher training institutions

Quit after two years not in the education industry

Another common and employees to sign a confidentiality agreement and the company's major education and training institutions. According to the reporter, and signed a confidentiality agreement between the training institutions and employment of teachers is a common phenomenon, mainly in order to prevent the courseware, lectures, case and student files and other information was leaked. As for employee turnover after the violation of the confidentiality agreement and non competition agreement, some companies will be investigated, and some companies are basically no matter.

According to a Beijing a primary and secondary education and training institutions to work the teacher: "educational institutions where I will be leaving the threat of outstanding teachers and stop using competition agreement, but always only to excellent teacher market price of about half of the salary."

A teacher of civil service training institutions in the country's largest told the evening news reporter, the company also asked to sign a confidentiality agreement and non competition agreement, employees shall not divulge handouts, shall not engage in the training of civil servants within six months after leaving, but my colleagues have switched to competitors to work.

A New Oriental School and teachers signed the competition agreement, the content is very detailed, not only limited in the competition between business employees in the labor duration and termination of labor after a certain period, and make provision for "there is competition between the business and party inside and outside the school and all fields of the same company or similar business, including but not limited to any type of clients in any form is provided in all areas of the product or service type teaching teaching. This means that, in a certain number of years after the termination of the labor turnover, the teachers shall not participate in most of the work and education related.

In the city of Beijing Haidian court and a former New Oriental School and teachers' labor dispute cases, employee turnover after he joined the work of another through video recording teaching company. Previously, the English teacher had signed the agreement and the provisions of the New Oriental School, leaving a year should fulfill the agreement. At the same time, the New Oriental School also offered a certain amount of competition restriction compensation.

The New Oriental School to ask the teachers to return the paid limit compensation, payment of liquidated damages on the grounds to the Haidian District Labor Arbitration Commission for arbitration, the results support the application requirements of the New Oriental School, teachers return restrictions on compensation and pay liquidated damages of four hundred thousand yuan. Both sides refused to accept the verdict, choice of court.

Ultimately, the Haidian court ruled that the teachers return restrictions on compensation, and pay 300 thousand yuan of liquidated damages. To judge, the teacher must understand and master the New Oriental School Education in the training business of commercial secrets, the self engaged in highly coincidence after the departure of the New Oriental School business competition, the breach will cause economic losses to the New Oriental School.

Consultant hairdressing beautician

Employers cannot prove the claim without loss of support

In addition to food, education and training industry, some real estate intermediary, the hairdressing industry and the company will sign a confidentiality agreement or the staff.

In Shanghai, the second city court hearing the case, an intermediary company and its employed consultant have signed the agreement, property consultant requirements shall not engage in business competing within two years after leaving. But a real estate consultant after the departure, the setting up of the real estate consulting firm. Intermediary companies will be the property consultant to court, asking them to pay a penalty.

However, because the court considered the plaintiff intermediary company failed to prove that the establishment of the company staff the actual loss caused to the plaintiff, should not bear the burden of the consequences, ultimately did not support the plaintiff's claim.

In 2017, a beauty salon in Hunan Xiangtan will leave the beautician to court, the original, the two sides signed the agreement, the provisions of the defendant after the departure of two years, not for others or self operating and company competitive business, nor in the business office and the company has competitive relationship unit or agency. The beauty salon, the beautician after leaving immediately took over a beauty salon, so will the beautician to court. However, the beauty salon and eventually lost because of a lack of evidence.

- lawyer

Compensation payment is the key

No matter is in the hands of workers or other types of high-tech enterprises in the skilled workers, consenting workers and signed a confidentiality agreement, non competition is permitted by law. Beijing Deheng lawyer Zhang Jingnan believes that this is the need to protect commercial secrets and intellectual property based, to avoid vicious competition among enterprises, maintain the market competition in good order.

But the premise of the employee to the non competition agreement, the employer shall pay restrictions on compensation, to balance the interests of workers and employers and losses. Shanghai lawyer Kong Qing said: "if there is no special agreement, three months did not pay compensation to the laborer may terminate the agreement of prohibition of business strife." Note that the performance of the agreement of competition agreement time is generally not more than two years.

The lawyer also reminded the worker in the hole, leaving and quit before, you can look at the new company and the original company's business scope, responsibilities are coincident, when necessary, ask a lawyer for advice.

The lawyer said: "if the hole competition agreement the range is too wide to invalid, such as a township enterprises agreed the whole city of competition area, a non important posts (cashier, administrative) also requires restrictions, which may belong to the invalid contract."

But there are also netizens think, some enterprises set out a pile of restrictions on corporate behavior is unfair competition agreement: "each column of an enterprise, the monthly compensation increase the monthly salary of 10%, feel at least would be reasonable, after all in a field of practical competition pressure is also a few companies that now the competition agreement the enterprises are listed finished, so compensation is overlord protocol."


Source: Beijing evening news intern reporter Xu Huiyao

Editor: TF017

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